Archive/File: people/e/eichmann.adolf/transcripts/Appeal/Appeal-Session-02-04
Last-Modified: 1999/06/15
Justice Silberg: Is this an official publication?
Attorney General: Yes, this is published by the U.N. War
Criminals Commission:
"The view of the problem most commonly adopted seems,
however, to be that since the rule against the
enforcement of ex post facto law is in essence a
principle of justice it cannot be applied in war
crime trials where the ends of justice would be
violated by its application."
Justice Agranat: Is that cited in the Judgment?
Attorney General: It is referred to by me. We have a card
index of the Judgment and we can locate it immediately.
Apparently no one disputes this. He argues that we cannot
enact our Law which would apply to acts carried out in
another country or performed on behalf of the state. The
reply to this is to be found in Paragraph 8 of the
Judgment.
I would just add several comments. It is argued that the
Law, which punishes acts carried out in another country
and punishes foreign citizens for such acts, contradicts
international law; in other words, that a state is not
entitled to try and punish any acts other than those
carried out within its territory or carried out by its
citizens. This is a wrong argument.
This is what international law always laid down, and in
any case this has been explicitly stated in the judgment
of the International Court in The Hague.
President: Mr. Hausner, did you cite Paragraph 8 of the
Judgment?
Attorney General: Yes, Paragraph 8 of the Judgment.
President: That is not correct.
Justice Silberg: Paragraphs 9, 10, 11.
President: In Paragraph 8 there is only the text of
the arguments.
Attorney General: I should have said: from Paragraph 8
onwards. Thank you very much.
It is my contention that the principle of exclusive
territorial legislation is not accepted in international
law. Moreover, this is explicitly stated in the well-known
judgment of the International Court at The Hague in the
"Lotus" case. As the Court will remember, the Lotus was a
French ship which was sailing on the high seas towards the
Turkish coast, and collided with a Turkish vessel, the Boz
Kourt. The collision occurred on the high seas, in other
words outside Turkish territorial waters. Several Turkish
citizens were killed in the collision. When the French
ship reached Constantinople, the officer of the watch was
charged with the criminal offence of manslaughter, under
Section 6 of the Turkish Criminal Law which makes it
possible to try in Turkey an individual who has harmed the
Turkish State or a Turkish citizen anywhere.
Justice Agranat: What is the corrrect reference for the
"Lotus"?
Attorney General: I have the judgment here.
Justice Agranat: I gather that the International Court did
not endorse this approach.
Attorney General: It did not base the right of retroactive
legislation on the Lotus case specifically. I would
therefore like to add this view of the matter in order to
reinforce and add weight to the Court's findings. The
Lotus judgment came out in a special issue.
Justice Agranat: If I am not mistaken, we referred to or
relied on the Lotus ruling in the Amsterdam case.
Attorney General: I believe that is correct.
Justice Silberg: What is the reference?
Attorney General: I will read several citations. The Court
will find the main observations on pages 19, 20 and 23. On
page 19 the Court discusses the possibility of enacting
legislation limited to territorial matters, and it says:
"Such a view would only be tenable if international
law contained a general prohibition to States to
extend the application of their laws and the
jurisdiction of their courts to persons, property and
acts outside their territory, and if, as an exception
to this general prohibition, it allowed States to do
so in certain specific cases. But this is certainly
not the case under international law as it stands at
present. Far from laying down a general prohibition
to the effect that States may not extend the
application of their laws and the jurisdiction of
their courts to persons, property and acts outside
their territory, it leaves them in this respect a
wide measure of discretion which is only limited in
certain cases by prohibitive rules; as regards other
cases, every State remains free to adopt the
principles which it regards as best and most
suitable."
On Page 20:
"Though it is true that in all systems of law the
principle of the territorial character of criminal
law is fundamental, it is equally true that all or
nearly all these systems of law extend their action
to offences committed outside the territory of the
State which adopts them, and they do so in ways which
vary from State to State. The territoriality of
criminal law, therefore, is not an absolute principle
of international law and by no means coincides with
territorial sovereignty."
Justice Agranat: What was the minority opinion in that
case?
Attorney General: The minority based itself on several
principles which linked rights of legislation and
jurisdiction to territory. For example, England's Lord
Finlay, who advocated the right of territorial limitation,
found no basis for this approach other than Oppenheim's
view in his book on International Law, 3rd edition, 1920.
This was the book that Lord Finlay had before him at the
time. In that section it says that a state has no
jurisdiction to try foreign subjects for offences
committed outside its borders.
Justice Silberg: Was there not a question of
interpretation that arose, as in our Amsterdam case, or
was this a question of the right to legislate?
Attorney General: It was a question of the right.
Justice Agranat: It was not just that, it was a question
of an accused who was not a subject of that country.
Attorney General: As far as subjects of that country are
concerned, Counsel for the Defence also says: You could
have done that, but you cannot make a law for others. That
is the reason why I cited the Lotus case, in which it was
not a Turkish subject but a French subject who was put on
trial.
In the same section, in the eighth edition of Oppenheim's
book, in the same paragraph on which Finlay based himself,
it is already put differently. And on page 331, Section
147, it says specifically that the practice of states is
to enact laws which have extraterritorial application and
that this is simply common sense. Oppenheim's editor, the
late Prof. Lauterpacht, in Volume 9 of the Cambridge Law
Journal has an article entitled, "Allegiance, Diplomatic
Protection and Criminal Jurisdiction over Aliens." On page
345 he writes as follows:
"There is international authority - in the Judgment
of the Permanent Court of International Justice in
the Lotus Case - in support of the extension, by
reference to the place of effect, of the territorial
principle. In that case the Court accepted as a valid
proposition of law that `it is certain that the
courts of many countries, even of countries which
have given their criminal legislation a strictly
territorial character, interpret criminal law in the
sense that offences, the authors of which at the
moment of commission are in the territory of another
State, are nevertheless to be regarded as having been
committed in the national territory, if one of the
constituent elements of the offence, and more
especially its effects, have taken place there'."
And on page 348 he repeats that territoriality "is not a
requirement of justice or a necessary postulate of the
sovereign state." Consequently, if Justice Finlay were
today looking for the reference he previously found in
Lauterpacht's book for his dissenting opinion about the
judgment - he would not find it.
In the trial of William Joyce - of which mention is made
in Paragraph 30 of our Judgment - the House of Lords
discussed this issue and decided unequivocally that a
crime of treason committed outside the borders of England
is an offence which the English courts are competent to
try. If this is true of ordinary criminal legislation, it
is even more valid for universal crimes, which have been
defined by the family of nations as the most heinous acts
ever known in history. If piracy is considered an offence
that jeopardizes the peace of all nations and therefore
every single nation has the authority to judge and punish
those who commit it, especially on the high seas, that
territory which is shared by all peoples, then according
to the same principle and for the same reasons, crimes
which are international in nature, which affect an entire
continent, which harm an entire people, and consequently
affect the whole of humanity, are of a comprehensive
nature and every single state is competent to judge and
punish those who commit them.
This leads to a clear-cut conclusion: that the
universality of the law gives each state the right to
claim its own jurisdictional power and its own penal power
in respect of a universal offence. For something that is
forbidden anywhere and everywhere in the eyes of organized
human society can be judged and punished anywhere and
everywhere. When, in a 1946 resolution, the United Nations
Assembly adopted the Nuremberg principles and the London
Agreement, it de facto determined that a crime against
humanity is a crime with universal incidence. In the
Justices Case, Volume 3, Green Series, pp. 954 ff., the
following passage is cited, which is also referred to in
Paragraph 26 of the Judgment:
"Within the territorial boundaries of a state having
a recognized, functioning government presently in the
exercise of sovereign power throughout its territory,
a violation of the rules of international law could
be punished only by the authority of the officials of
that state. The law is universal, but such a state
reserves unto itself the exclusive power within its
boundaries to apply or to withhold sanctions..."
Justice Silberg: Are you arguing, Mr. Attorney General,
that the Nuremberg Tribunals created substantive
international law?
Attorney General: No, they simply wrote it down, they put
it into words, they did not create it. Consequently, when,
in 1950, the Knesset of the State of Israel enacted the
Nazis and Nazi Collaborators (Punishment) Law, the
resolution of the United Nations Assembly had already been
in existence for four years, confirming that the
principles of international law as recognized by the
London Charter and the Nuremberg international judgment
were the patrimony of all nations.
Nor is it true that only an international court can judge
war crimes. The countries overrun by Hitler made their own
laws for judging war criminals. I have in my possession
photostatic copies which I also submitted in the Lower
Court and with which I am prepared to provide the Court
here, of
the laws of Austria, Bulgaria, Belgium, Canada, Denmark,
Finland, Greece, Holland, Hungary, Luxembourg, Norway,
Poland, Romania and Yugoslavia. All these countries
enacted in consequence of, or immediately after, the War
laws for the punishment of crimes of the kind committed by
Adolf Hitler: They are all retroactive, and they did not
wait for the establishment of an international court, nor
did they confer competence on German courts - of all
courts. I shall not analyse all these laws, but the Court
will find that those countries which were most attached to
the territorial principle, such as Holland, for example,
specified in their law: "This Decree introduced heavier
punishment, including the death penalty for certain crimes
existing in the penal code, made certain crimes punishable
by the Netherlands judges even if committed outside the
country."
Justice Silberg: Did you also refer to Canada?
Attorney General: Yes.
Justice Silberg: In other words, that could serve as an
authority that when both these matters are linked, when
the law is both extraterritorial as well as retroactive,
that, too, is possible?
Attorney General: Yes.
Justice Silberg: Because Servatius' argument was that it
may be possible to enact an extraterritorial law and it
may be possible to enact a retroactive law, but it is not
possible to enact a law which is both extraterritorial and
retroactive.
Attorney General: That is correct. But also, it cannot be
otherwise. Let us consider what was the subject matter.
Germany had abrogated the law. We have also submitted the
letter of the German Minister of Justice, and then the
victors came after the War. What should they have done?
Say that after a group of criminals came along, which
dethroned the law and trampled on it, to say for that
reason, "there was no law, retroactive legislation is
impossible, things will be allowed to pass unjudged" - or
should we say that the principle of legislation is ex post
facto as well as extraterritorial: It is a question of
justice. And there is something greater even here - that
such heinous acts should not remain unpunished.
There has been much talk of nullum crimen sine lege and
nullum poena sine lege, but it is of course unthinkable
that we should reach a situation of nullum crimen sine
poena. It is unthinkable that the most heinous crimes
should be committed and then we should say, "in terms of
formal principles we have no way of imposing punishment."
In the collection to which I have already referred, the
Law Reports of Trials of War Criminals, the Court will
find in Volume 15, at pages 27, 28, 31, 32 and 44,
descriptions of laws enacted in various countries for
punishing war criminals and the extraterritorial
jurisdiction thus conferred on them. On page 27 it says:
"Here the right, long recognized under international
law, to try war crimes committed by enemy nationals,
has been extended so as to include a right to try
crimes against humanity and crimes against peace as
well."
This is the same right enjoyed prior to this by every
state to punish what was called a "war crime" in the
restricted sense; this right has now been extended and
transferred, under the laws of various countries, also to
trying crimes against humanity.
Justice Silberg: When was it extended?
Attorney General: In the wake of the two world wars,
particularly World War II. On page 28 the Court will find
a description of how "The legal basis under Municipal Law
of the various Courts, Commissions and Tribunals set up to
try alleged war criminals and similar offenders
necessarily varies somewhat from country to country, but
it is not necessary in a survey of international criminal
law to indulge in any extensive comparative study of the
sources under Municipal Law of war crimes jurisdiction."
Norway enacted a law allowing it to conduct proceedings in
Norway for crimes committed during the War outside
Norwegian territory which harmed Norwegian subjects or
Norway's interests. France enacted a similar law in
respect of matters which harmed French persons or persons
under French protection. It is the universality of the
offence which created the universality of jurisdiction.
Crimes against humanity by their very nature breach
territorial boundaries and cannot be restricted to a
particular place, nor in their respect can jurisdiction be
restricted to any particular court.

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